Here We Go: The High-Stakes Kavanaugh Hearings Are Here, and Democrats Are Already Pulling Stunts

|
|
Posted: Sep 04, 2018 10:25 AM
Here We Go: The High-Stakes Kavanaugh Hearings Are Here, and Democrats Are Already Pulling Stunts

Today, President Trump's selection to fill the Supreme Court vacancy created by the retirement of Justice Anthony Kennedy -- Judge Brett Kavanaugh -- will begin a grueling week of hearings before the Senate Judiciary Committee.  The theatrics have already begun.  That panel is narrowly controlled by the GOP, 11-10, and is chaired by venerable Iowa Republican Chuck Grassley.  The opposition party has for weeks been casting about, sometimes quite desperately, for a coherent line of attack against Kavanaugh.  They've largely failed, as evidenced by stories like this:

As Sen. Charles E. Schumer pondered the judicial nomination of Brett M. Kavanaugh, the New York Democrat could barely contain his anger. He viewed the choice as “among the most political in history” and could not think of another nominee “more designed to divide us.” Schumer was not talking about President Trump’s nomination of Kavanaugh to be a Supreme Court justice. It was 2004, and Schumer helped lead the Democrats’ questioning of Kavanaugh to move from the George W. Bush White House to a federal circuit judgeship...Now, however, as Kavanaugh prepares for his Tuesday confirmation hearing, Democrats are still searching for a strategy that could stop his ascension to the highest court...

 Some of the Democratic arguments against Kavanaugh are no longer valid. 
At the time of his 2004 hearing, Democrats focused on his youth and lack of courtroom experience. He was 39 years old and had not served on any court, although he had clerked for three judges, including Justice Kennedy, whom he is now nominated to succeed. Today, he is 53 years old — considered an ideal age for someone who hopes to serve for decades on the Supreme Court — and has issued dozens of rulings for the U.S. Court of Appeals for the D.C. Circuit...Legal scholars who have reviewed Kavanaugh’s roughly 300 opinions rank him in the middle of the spectrum of other Republican-nominated judges.

The left-leaning American Bar Association has unanimously rated Kavanaugh as "well qualified," its strongest possible assessment.  Meanwhile, Kavanaugh and his team have been preparing for the events of this week for some time, repeatedly simulating the marathon question-and-answer gauntlet that awaits.  Politico reports on some of the details of these "murder boards" sessions, including anticipating protesters:

The White House is making last-minute preparations for Supreme Court nominee Brett Kavanaugh’s Senate confirmation hearings next week, holding final prep sessions and setting up a pair of rapid-response war rooms. Kavanaugh, a Washington veteran who worked for President George W. Bush and helped write the Starr Report, has called on his vast network to help him get ready for the hearings. His former clerks, lawyers from the conservative Federalist Society and even Republican senators have participated in nearly a dozen practice sessions designed to mimic the conditions of the often grueling hearings, according to a White House official.  On Monday, Kavanaugh participated in his last full moot court session, which lasted nearly the entire day. Sitting in a large office in the Eisenhower Executive Office Building, he took questions from aides who played key members of the committee, mimicking their style of questioning. The mock hearing room has been outfitted with a dais, nametags, microphones and a clock with red and green lights meant to keep his answers within the allotted time limit. The sessions, which are often referred to as “murder boards,” have also featured faux protesters to make sure Kavanaugh stays cool in the event of a midhearing outburst.

The story notes that GOP Senators Lindsey Graham, Rob Portman, Dan Sullivan and Orrin Hatch have participated in the preparatory exercises, sometimes channeling their Democratic colleagues by subjecting Kavanaugh to intense grillings on topics expected to draw fire from the Left.  Kavanaugh will face pointed questions on issues ranging from abortion jurisprudence, to his views and writings on presidential investigations, to the administration's decision to withhold some documents from Kavanaugh's days as staff secretary in the George W. Bush White House.  Regarding presidential probes, and questions on how and if a sitting president can be investigated, sued, or prosecuted, some Democrats are likely to push for a recusal pledge (should Justice Ginsburg recuse herself from Trump-linked cases?).  And on the transparency front, critics are previewing another angle they'll push:


Republicans are already firing back that when Chairman Grassley asked committee Democrats for specific document requests, the only member who actually responded was Klobuchar -- who asked for 12 pages of materials.  She was furnished with all 12 pages.  As for the general issue of access to Bush-era records, Sen. Hatch's August floor speech shoved back hard against some of the Democratic tactics and complaints: 

For the last few weeks, Democrats have complained endlessly about documents. First, they said there weren’t enough documents. Then when the Judiciary Committee released a record-breaking number of documents, Democrats complained that there wasn’t enough time to review them all. They then complained that the documents weren’t public. When we made the documents public, Democrats were disappointed to find that they contained no smoking gun. There has been much ado about documents. But in the end, it’s much ado about nothing.   One thing I’ve heard many of my colleagues say is that because we reviewed all of Justice Elena Kagan’s records from her time in the Executive Branch, we must review every last scrap of paper that crossed Judge Kavanaugh’s desk while he was in the Executive Branch. That just isn’t so.

When Justice Kagan was nominated, the Senate did not ask for, nor did it receive, all of her records from her time in the Obama administration. In fact, the Senate never requested, and the Obama administration never provided, any of Justice Kagan’s records from her time as Solicitor General. And they certainly didn’t ask for every document from the Solicitor General’s office that contained a mere reference to Justice Kagan “by name, initials, or title.” Producing sensitive internal deliberations and other documents from the Solicitor General’s office would have been extraordinarily inappropriate and even damaging to the Executive Branch, which is exactly why the Senate did not ask for Justice Kagan’s records. This decision was especially difficult because Justice Kagan had no judicial records to review. By contrast, we have over 12 years of Judge Kavanaugh’s rulings on the DC Circuit.

This last point is especially important.  While I favor releasing many documents (within reason) from Kavanaugh's past political service, by far the most important and pertinent information we have to evaluate this nominee is his record of more than a dozen years sitting on the second most influential federal court in America.  It's that body of work that ought to be the centerpiece of the debate over Kavanaugh's qualifications for the High Court; the fact that his detractors and opponents have flailed after other topics is telling.  With the countdown to the hearings dwindling down, Democrats found themselves embroiled in an internal battle over whether to engage in the theatrics of...walking out of the hearings:


Joe Biden disagrees, urging his fellow partisans to attend the hearings and pepper Kavanaugh with tough questions -- which is, of course, the correct and reasonable view.  The fact that a number of left-wingers want to boycott the hearings is a sign that they see the writing on the wall.  So is the pathetically failed attempt by all ten judiciary committee Democrats to cancel the hearings, based on unrelated nonsense.  Judge Kavanaugh is being introduced by former Secretary of State Condoleezza Rice and Ohio Senator Rob Portman, as well as "Lisa Blatt, a liberal Supreme Court litigator. Blatt, who clerked for Justice Ruth Bader Ginsburg on the U.S. Court of Appeals for the District of Columbia Circuit, has argued 35 cases before the Supreme Court, of which she has won 33."  Heading into today, the strong odds are that Kavanaugh will be advanced out of committee on a party-line vote, then confirmed by the full Senate -- with all Republicans voting aye, joined by a small handful of red state Democrats.  In other words, it'll effectively be a Gorsuch re-run; barring, of course, some unforeseen dramatic developments.  

If GOP moderates like Susan Collins and Lisa Murkowski continue to appear inclined to support Kavanaugh, it's all over, except for the shouting.  The only twist will be how many vulnerable Democrats will buck their party's base in order to foreclose a potent critique from GOP challengers back home.  I'd put the over/under at four.  I'll leave you with this week's schedule, of which days two and three promise to be the most interesting and potentially consequential:


UPDATE - Senate Democrats are insisting they just need more time and more documents. Part of me wonders if they aren't acting in good faith: